Sunday, 13th October 2019

Workplace Regulations

Employers slowly beginning to ban e-cigarettes in Irish workplaces.

Employers are starting to implement e-smoking bans in workplaces in line with the current tobacco smoking ban.

In March 2014 Bus Eireann and Dublin Bus extended their respective “no smoking” policies to prohibit the use of e-cigarettes and vapour devices on their busses – employees, as well as customers, are banned from smoking any form of cigarette except in designated areas. Irish Rail also implemented the ban in the recent past and now universities and other institutions and companies are beginning to follow suit by disallowing the use of cigarette substitutes.

There are a few reasons for this -

  1. To avoid ambiguity – from a distance e-cigarettes can appear quite like a regular cigarette. 

  2. Because e-cigarettes contain nicotine – nicotine is a highly addictive and harmful drug. Nicotine was formerly used as an insecticide and can increase blood pressure and heart rate in humans.

  3. Because the effects of e-smoking are not yet known – e-cigarettes are a relatively new innovation and consequently the long-term effects on health are unclear.

  4. Because of the vapour omitted – there is uncertainty over the contents and effects of this vapour on the e-cigarette smoker and the people in his or her presence.

 

e-smoking ban

 

    While there is no legislation currently in place in Ireland disallowing the use of e-cigarettes and similar products in the workplace, more and more employers are beginning to enforce their own internal rules in relation to their use at work.

    However, if the rules around e-smoking in the workplace are not covered in the Employee Handbook, the employer could find it difficult to enforce such a policy. The rules surrounding e-cigarettes should be available for all employees - non-e-smokers as well as e-smokers - so there is no confusion over what is/is not allowed.

    If an employer is considering revising the company’s policies then it is imperative that he or she ensures that the new rules are clearly communicated to employees through an update of the Employee Handbook (which should contain all HR policies).

    At least two employees in The United Kingdom have recently brought cases forward claiming that they were “victimised” by their employers for use of e-cigarettes in the course of their work. It is only a matter of time before we start to see cases trickle through the system in Ireland and so it would serve employers well to prepare for this potentially costly exposure by introducing very clear policies in relation to e-cigarettes as soon as possible.

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    The Applicable Minimum Notice Periods for Employees in Ireland

    The Minimum Notice Acts 1973 to 2005 ensure that every employee who has been in the continuous employment of his or her employer for at least 13 weeks is entitled to a minimum notice period before you, as the employer, may dismiss that employee.

    Minimum Notice

    The statutory period varies depending on the length of service (outlined below).

    It is essential to note that if you do not require the employee to work out their notice you, as the employer, are obliged to pay the employee for the applicable period.

     

      • If the employment lasted between 13 weeks and 2 years the Acts provide that you should pay the employee one week's notice before termination of employment.
      • If the length of service is between 2 and 5 years then the notice period must be 2 weeks.
      • For 5 to 10 years then the appropriate notice is 4 weeks.
      • From 10 to 15 years then 6 weeks’ notice must be given.
      • For more than 15 years the employee is entitled to a notice period of 8 weeks.

    You can agree payment in lieu of notice with the employee if this is a more suitable arrangement for both parties involved.

    Minimum Notice

    If it is the employee that has made the decision to terminate the employment contract and he or she has carried out 13 weeks of continuous employment with the company then he or she is obliged to serve you, as the employer, with notice 1 week prior to the departure date (unless the contract of employment provides for a longer notice period).

     

    It is important to bear in mind that the Acts do not apply to:

      • Members of the Permanent Defence Forces (except temporary staff in the Army Nursing Service)
      • Members of An Garda Síochána
      • Seamen signing on under the Merchant Shipping Act
      • The immediate family of the employer (provided they live with the employer and work in the same private house or farm)
      • Established civil servants
    Minimum Notice

    Employees are said to have continuous service if they have not been dismissed or have not voluntarily left their job during the period in question. This continuity is not normally affected by things like lay-offs or by a dismissal followed by immediate re-employment. Nor is it affected by the transfer or trade of a business from one person to another.

    However, it is important to distinguish between categories of employees for the purposes of these Acts as an employee who has claimed for and received a redundancy payment as a result of lay-off, for instance, is considered to have left his or her employment on a voluntary basis.

    If an employee was absent from work because he or she was taking part in a strike relating to the business in which the employee is employed this period is not included in their “continuous service” record.

     Minimum Notice Periods

    It is very important to note that the Acts do not affect your right or that of the employee to terminate a contract of employment without notice due to the gross misconduct of the other party.

    A Workplace Relations Customer Services department has been set up at the offices of the Department of Jobs, Enterprise and Innovation. This resulted from the amalgamation of the information services previously provided by the National Employment Rights Authority’s Contact Centre and the general enquiries areas of the Equality Tribunal, the Rights Commissioner Service and the Employment Appeals Tribunal.

    This section has responsibility for:

      • information provision in relation to employment, equality and Industrial Relations rights and obligations,
      • the receipt and registration of all complaints referred to the five Workplace Relations Bodies, and 
      • dealing with enquiries concerning all complaints.

    From 3rd January 2012 all complaints to the Workplace Relations Bodies have been channelled through Workplace Relations Customer Services, where they are registered, acknowledged and referred to the relevant adjudication body.

    Mimimum Notice Guide

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    Dignity at Work – 20% of racist incidents occur in workplace

     

    Racism, Dignity at work

     

    In December 2013 the Immigrant Council of Ireland (ICI) brought our attention to a shocking statistic – The ICI revealed that the number of racist incidents reported in Ireland in the first 11 months of 2013 had jumped to a staggering figure – The ICI dealt with 142 individual racism cases between January and November 2013 - This figure was 85% higher than for the same 11 month period in 2012. 52 of the racist incidents that were reported occurred between June and July of 2013 alone. This signified a huge increase when compared to the same period in 2012 when just 3 incidents of a similar kind were reported.

    The racism reported related to alleged discrimination, written harassment, verbal harassment and physical violence.

    Denise Charlton, CEO of the Immigrant Council of Ireland, described the results as "alarming".

    A massive 20% of the reported incidents of racism occurred in the workplace.

    Employers need to be vigilant and need to make more of an effort to consciously crack down on this type of activity.

    Employers - Did you know that you can be held accountable for bullying or harassment in the workplace?

    ……..Not being aware of it does not get you off the hook!

    Bullying in the workplace is any recurring inappropriate conduct that undermines a person’s right to dignity at work. Bullying can be carried out by one person or by several people - it is aimed at an individual or a group where the objective is to make them feel inferior or victimised. Bullying can come in the form of a verbal or physical assault and can also take place over the internet – this is known as cyber bullying and can be performed via many methods - Mobile phones, social networking sites, emails and texts are all common vehicles for cyber bullying.

    Cyber bullying is becoming more and more prevalent in society.

    Keep in mind that harassment based on civil status, family status, sexual orientation, religion, age, race, nationality or ethnic origin, disability or membership of the Traveller community is considered discrimination.

    Harassment in the workplace is prohibited under the terms of the Employment Equality Acts, 1998 to 2007. The Act of harassment - whether direct or indirect, intentional or unintentional - is unacceptable and should not be tolerated by any company.   Any allegations should be dealt with seriously, promptly and confidentially with a thorough and immediate investigation. Any acts of harassment should be subject to disciplinary action up to and including dismissal.  Any victimisation of an employee for reporting an incident, or assisting with an investigation of alleged harassment and/or bullying is a breach of Equality Legislation and should also be subject to disciplinary action.

     

    Dignity at work

    Bullying or harassment isn’t always obvious – in fact it can come in many shapes and forms – some examples are:

    •Social exclusion or isolation

    •Damaging someone’s reputation through gossip or rumour

    •Any form of intimidation

    •Aggressive or obscene language or behaviour

    •Repeated requests for unreasonable tasks to be carried out

    Employers Beware:

    Under current Irish employment legislation (The Employment Equality Acts 1998-2011) companies are accountable when it comes to bullying and harassment in the workplace or workplace disputes. It is vital for employers to be mindful of the legislation as companies are answerable for the actions of employees, suppliers and customers even in cases where the company is not aware that bullying or harassment is taking place.

    To defend itself a company must illustrate how it did everything reasonably practicable to prevent bullying and / or harassment from taking place in the workplace. The company must also show that when an instance of bullying or harassment occurred the company took immediate, fair and decisive action.

    There is a huge risk of exposure if companies do not adhere to the strict Regulations. Those found in violation of the Act may be liable for fines and in severe circumstances imprisonment on summary conviction. Companies can also end up paying out large sums in compensation.

    Bullying creates a very hostile work environment and can negatively affect employee performance – It can lead to disengagement and low levels of morale. It can also cause a company to lose key members of staff. Bullying can affect both the safety and the health of employees – this violates the Safety, Health and Welfare at Work Act 2005.

    It is abundantly clear that it is in the best interest of all stakeholders to prevent bullying or harassment of any form in the workplace.

    In order to avoid bullying and harassment an employer should include harassment-related policies and procedures in the Employee Handbook – A Dignity at Work Policy should be communicated clearly to employees. This will clarify what is expected of employees and what the protocol/repercussions are if bullying/harassment does occur.

     

     

    Disciplinary Procedure Chart

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    Labour Court Ends Zero-Hours Contracts For HSE Home Helps

    The Labour Court has issued a recommendation giving improved terms and conditions to Home Help workers employed by the Health Service Executive (HSE).

     

     Labour Court, HSE, Home Help

     

    The recommendation, which is binding under the terms of the Haddington Road Agreement, was issued on 18th September, 2013, and will affect the employment terms and conditions of approximately 10,000 workers.  It is important to note that this agreement only applies to Home Helps who are employed by the HSE. Individuals employed by private companies or not-for-profit providers are not covered by this Labour Court recommendation.

     

    Services Industrial Professional and Technical Union (SIPTU) has been campaigning since 2009 in a bid to secure adequate contracts and security of earnings for its members. The Union has welcomed the Labour Court decision which brings an end to the extensive system of zero-hour contracts. Paul Bell, SIPTU Health Division Organiser, stated that the agreement put the terms and conditions of Home Helps on a “firm and binding platform for the first time since the community service was established thirty years ago”.

     

    A Zero-hours contract is a type of employment where an employee must be available for work but does not have specified or guaranteed hours or a formal roster. This can cause challenging circumstances for employees where the hours of work as well as earnings are unpredictable.

     

    Home Help Contracts

     

    This Labour Court agreement provides for the issuing of annualised contracts guaranteeing a minimum of seven to 10 hours of work per week for each Home Help. Caroline Jenkinson, Labour Court Deputy Chairman, explained that “the number of hours to be allocated to each person will be based on 80 per cent of their actual hours worked in the six-month reference period between October 1st, 2011, and March 31st, 2012, with a minimum guarantee of seven hours”.

     

     

    In addition to welcoming the removal of the zero-hours system Mr. Bell of SIPTU applauded a HSE effort to reorganise and manage the Home Help hours on a county by county basis.

     

    Those who choose not to work under the annualised hour scheme may be entitled to receive compensation of between €2,000 and €3,000 under an exit deal.

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    Dignity at Work – Workplace Racism at an Alarming Level

    Employers - Did you know that you can be held accountable for bullying or harassment in the workplace?

    ……..Not being aware of it does not get you off the hook!

    Bullying in the workplace is any recurring inappropriate conduct that undermines a person’s right to dignity at work. Bullying can be carried out by one person or by several people - it is aimed at an individual or a group where the objective is to make them feel inferior or victimised. Bullying can come in the form of a verbal or physical assault and can also take place over the internet – this is known as cyber bullying and can be performed via many methods - Mobile phones, social networking sites, emails and texts are all common vehicles for cyber bullying.

    Cyber bullying is becoming more and more prevalent in society.

    Keep in mind that harassment based on civil status, family status, sexual orientation, religion, age, race, nationality or ethnic origin, disability or membership of the Traveller community is considered discrimination.

    Harassment in the workplace is prohibited under the terms of the Employment Equality Acts, 1998 to 2007. The Act of harassment - whether direct or indirect, intentional or unintentional - is unacceptable and should not be tolerated by any company.   Any allegations should be dealt with seriously, promptly and confidentially with a thorough and immediate investigation. Any acts of harassment should be subject to disciplinary action up to and including dismissal.  Any victimisation of an employee for reporting an incident, or assisting with an investigation of alleged harassment and/or bullying is a breach of equality legislation and should also be subject to disciplinary action.

     

    Dignity at work

    Bullying or harassment isn’t always obvious – in fact it can come in many shapes and forms – some examples are:

    •Social exclusion or isolation

    •Damaging someone’s reputation through gossip or rumour

    •Any form of intimidation

    •Aggressive or obscene language or behaviour

    •Repeated requests for unreasonable tasks to be carried out

    Employers Beware:

    Under current Irish employment legislation (The Employment Equality Acts 1998-2011) companies are accountable when it comes to bullying and harassment in the workplace or workplace disputes. It is vital for employers to be mindful of the legislation as companies are answerable for the actions of employees, suppliers and customers even in cases where the company is not aware that bullying or harassment is taking place.

    To defend itself a company must illustrate how it did everything reasonably practicable to prevent bullying and / or harassment from taking place in the workplace. The company must also show that when an instance of bullying or harassment occurred the company took immediate, fair and decisive action.

    There is a huge risk of exposure if companies do not adhere to the strict Regulations. Those found in violation of the Act may be liable for fines and in severe circumstances imprisonment on summary conviction. Companies can also end up paying out large sums in compensation.

    Bullying creates a very hostile work environment and can negatively affect employee performance – It can lead to disengagement and low levels of morale. It can also cause a company to lose key members of staff. Bullying can affect both the safety and the health of employees – this violates the Safety, Health and Welfare at Work Act 2005.

    It is abundantly clear that it is in the best interest of all stakeholders to prevent bullying or harassment of any form in the workplace.

    In order to avoid bullying and harassment an employer should include harassment-related policies and procedures in the Employee Handbook – A Dignity at Work Policy should be communicated clearly to employees. This will clarify what is expected of employees and what the protocol/repercussions are if bullying/harassment does occur.

     

    Racism, Dignity at work

    Last week the Immigrant Council of Ireland (ICI) brought our attention to a shocking statistic – The ICI revealed that the number of racist incidents reported in Ireland over the last 12 months had jumped to a staggering figure – They dealt with 120 individual racism cases in the past
    year. 52 of these instances were reported in June/July of 2013 alone marking a huge increase when compared to the same period in 2012 when just 3 incidents were reported.

    The racism reported related to alleged discrimination, written harassment, verbal harassment and physical violence.

    The most commonly reported setting for racism was the workplace – where a massive 20% of reported incidents occurred.

    Employers need to be vigilant and need to make more of an effort to consciously crack down on this type of activity.

     

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    JobsPlus – More Jobs at a Lower Cost

     On 1st July 2013 the Department of Social Protection launched a new Scheme which offers employers rewards for recruiting individuals who have been unemployed for a considerable period of time. The JobsPlus incentive encourages companies to employ the long-term unemployed and in return offers substantial cash grants to the employer.

    JobsPlus replaces the existing Revenue Job Assist Schemes as well as the Employer Job PRSI exemption.

    describe the image

    The list of individuals who have experienced long-term unemployment has grown significantly in recent years and the objective of this incentive is to motivate employers to recruit from this grouping first.

    The cash grant will be payable monthly (in arrears) via Electronic Fund Transfer over a period of two years. This payment will only continue to be made if the recruit in respect of whom the grant is being paid remains in the same employment.

    There are two different levels of grant – the higher rate will only be paid in respect of those who have been out of employment for more than 2 full years.

    The figure being paid in respect of those who have been unemployed for 12-24 months is a total of €7,500 per person.

    The grant in respect of those who have been out of the workforce for more than 2 years is €10,000 per person.

     

     

    The critical eligibility criteria for JobsPlus are:

     

    • The roles offered must be “Full Time” employments – offering more than 30 hours per week (and spanning at least 4 days per week).

     

    • The employers concerned must be fully compliant with Irish tax and employment laws.

     

    • The roles given to the long-term unemployed must not displace current employees – however, the grant is available to employers who are filling new vacancies as a result of natural turnover.

     

    • The period of unemployment must be continuous (and a minimum of 12 months) in order for the recruit to be eligible.

     

    JobsPlus - hiring the long-term unemployed

    Employers are not limited in terms of the numbers that they can employ from the long-term unemployment register.

    As mentioned JobsPlus replaces the existing Revenue Job Assist Schemes as well as the Employer Job PRSI exemption – Beneficiaries of these schemes will, however, continue to receive the tax and Pay Related Social Insurance (PRSI) exemption privileges for as long as they are entitled by the terms and conditions of these schemes to do so.

     

     

     

    Employers are able to register for the JobsPlus Incentive by filling out a form on www.jobsplus.ie.

    Employers will also be able to instruct prospective employees to fill out an online application to confirm that they are eligible for the JobsPlus Scheme.

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    Protections for Whistleblowers in Ireland

    The Protected Disclosure Bill 2013 was published on July 3rd 2013 by Minister for Public Expenditure and Reform, Brendan Howlin, T.D. The Bill is to establish a comprehensive legislative framework protecting whistleblowers in all industries in Ireland.

    The purpose of the legislation is to protect workers who raise concerns regarding wrongdoing (or potential wrongdoing) that they have become aware of in the workplace. The Bill will offer significant employment and other protections to whistleblowers if they suffer any penalties at the hands of their employer for coming forward with information of wrongdoing in the workplace.

     

    Whistleblowers, Protection for whistleblowers in Ireland

    The legislation, which is due to be enacted in the autumn, closely reflects best practices in whistleblowing protection in developed nations around the world.

    According to Minister Howlin the Bill “should instil all workers with confidence that should they ever need to take that decisive step and speak-up on concerns that they have about possible misconduct in the workplace, they will find that society values their actions as entirely legitimate, appropriate and in the public interest”.

    Some key elements included in the Bill are as follows:

    Compensation of up to a maximum of five years remuneration can be awarded in the case of an unfair dismissal that came about as a result of making a protected disclosure. This would be a massive step forward in Ireland’s attempt to match the standards set by other established nations.

    It is important to note that limitations relating to the length of service that usually apply in the case of Unfair Dismissals are set aside in the case of protected disclosures.

    As a result of this Bill whistleblowers will benefit from civil immunity from actions for damages and a qualified privilege under defamation law.

    The legislation provides a number of disclosure channels for potential whistleblowers and stresses that the disclosure, rather than the whistleblower, should be the focus of the attention.

    Protections for the whistleblower remain in place even where the information disclosed does not reveal any wrongdoing when examined. Deliberate false reporting, however, will not be protected.

    These measures, when enacted, should encourage more people to come forward, and feel comfortable doing so, when they become aware of (or suspect) any criminal activity, misconduct or wrongdoing in the workplace.

    Protection for whistleblowers in Ireland

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    Breaks and Rest Periods in the Irish Workplace

    Break Periods in Work Under the Organization of Working Time Act 1997 every employee in Ireland has a legal entitlement to breaks during their working day (or night) and is entitled to have clearly defined rest periods between their working days/nights.

    Under the Organization of Working Time Act 1997 a rest period is defined as any time that is not working time.

    In general an employee is entitled to a 15 minute break after the completion of 4.5 hours of work. If the employee is working a shift of 6 hours then he or she is entitled to a 30 minute break (the first break of 15 minutes can be included in this 30 minute allocation).

    The employer is not obliged to pay employees for these break periods and they are not included when counting the total amount of time that the employee has worked.

    The regulations vary slightly for different categories of employees - for instance, shop employees who work more than 6 hours at a time are entitled to a break of one consecutive hour between the hours of 11:30 and 14:30 if their work schedule incorporates this period.

    Breaks in work - rest periods

    Employees are entitled to 11 consecutive hours of rest in a 24 hour period – on top of this an employee should receive 24 hours of consecutive rest in every 7 day period and this 24 hour allocation should follow an 11 hour rest period. Where an employer does not give his or her employee a full 24 hour consecutive rest period throughout the course of one week he or she must give two of these 24 hour rest periods in the following week.  This rest period, unless otherwise stated, should include a Sunday.

    Not all employees are governed by the break and rest period rules described above. Members of An Garda Síochána, The Defence Forces and employees who manage their own working hours are exempt.  Family employees on farms or in private homes are also excluded from the Organization of Working Time Act 1997 directives.

    The working terms and conditions for people under the age of 18 are regulated by the Protection of Young Persons (Employment) Act 1996.

    Rest periods in work - break periods

     In exceptional circumstances or emergencies an employer is exempt from providing the above mentioned rest periods but only where he or she provides equivalent compensatory rest. Where the rest period is postponed the employer must allow the employee to take the compensatory rest within a reasonable period of time. Employees working in transport activities or certain categories of civil protection services are exempt from the statutory break regulations specified above (the equivalent compensatory rest rules do not apply for these employees).

    Employers should be aware that employees have 6 months to make a complaint regarding breaks and rest periods (in certain circumstance this period can be extended to 12 months).

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